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Recipe for Disaster: Teens, Sexting and the Law

written by: Rebecca Scudder • edited by: Michele McDonough • updated: 9/11/2012

Sexting is a controversial topic. Many people and some lawmakers consider it solely a teenager activity. It is far more widespread than that, but much of the controversy about how sexting should be regulated involves teens.

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    As a parent with teenagers who have cellphones, I pay attention to stories about teens and cellphones. I made the decision to give mine cellphones because it made keeping in contact with them much easier. It made me feel they were safer. It also allows them to keep in touch with friends.

    I picked a cellphone plan that allowed texting, knowing that it would be mostly used in texting friends. My daughter does additional chores to pay for the extra cost. I thought they were mature enough to use their phones appropriately, and obey school restrictions on when they should be used at school. Nothing has given me the impression they have used them inappropriately.

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    I have no specific reason to think my kids participate in sexting. I have raised them to consider the feelings of other people, and I do not believe that they would forward material with sexual content from others to their friends. They understand privacy. If they make the choice to sext with someone their own age, consensual activity is not a criminal offense. In some ways, electronic experimentation is safer. It is certainly not child pornography.

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    Sexting Defined

    Sexting is the transmission of sexually related content, written or visual, via mobile phone or the web. It is a misapprehension to think just teenagers do this, or even that most content relates to teens.

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    Sexting Laws and Teens

    Politicians in virtually every state, if not every state, have been attempting to regulate sexting, and in particular teen sexting.

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    A lot of legislation has been created about sexting teens. While not all of it has passed, some teens have been convicted of child pornography related charges, despite the completely consensual nature of their sexting. Teens who sent pictures of themselves have been charged with making child pornography.

    This month (July 2011) laws have passed in Texas and New Jersey that are meant to reduce the severity of charges for first time teen offenders.

    While the reduction in severity is a good step, it is still a distorted way of looking at the issue. There is something profoundly wrong when the law is used to convict and brand for a lifetime those who it is supposedly trying to help.

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    Twelve states put the age of consent at 18. The other 38 states put the age of consent at 16 or 17. There is additional legislation in many states restricting that consensual sex to people within a two year age range. Aside from the confusion of multiple ages of consent in different locations, there is also the problem of what has been declared illegal.

    In Alabama, the age of consent is 16. That is, a 16 year old can have sex with a 16 year old or 17 year old legally. In Alabama, sexual descriptions and depictions of anyone under the age of 17 are considered child pornography. So – you can have sex, but not talk about it.


    The mental gymnastics necessary to consider both those things as true, correct and appropriate are beyond me.

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    Broken Laws and Bad Solutions

    It is a sad state of affairs when changing a law that imposes extremely harsh penalties to wording that still makes the activity illegal, but provides for less harsh punishment, is declared a victory.

    Laws that say teens should be treated more leniently when it is a first offense still miss the point. Why is it an offense? Why is everything being shoved under the umbrella of illicit texting, no matter the circumstances or participants?

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    Child pornography laws supposedly protecting teens are instead branding teens with sex offender status. Beyond that, teens who are convicted of child pornography because they engaged in consensual sexting may be legally able to have sex with a partner of the same age, if both are at the age of consent in their state or jurisdiction. But they cannot send a picture of themselves or messages describing their sexual relationship to their partner without violating laws.

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    Teens Sexting Is Not Pedophilia

    I am not condoning pedophilia. Child abuse, whether sexual, emotional or physical, doesn’t have an excuse. But there is a difference between teens learning about their sexuality and pornography. We need to find an appropriate way to address consensual sexual activity in teenagers, without criminalizing them.

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    What Kind of Protection Do Our Teens Need?

    Parents want to protect their children. It can be difficult to move beyond that, but it is necessary. From taking a first step, riding a bike, failing a test because they did not study, or having relationships – learning happens by doing. Perfect protection is not always the best answer for our children; especially as they grow toward the age of legal independence.

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    Fixing What's Broken

    An alternative solution needs to address these points:

    • Consensual sexting activity between teens who have reached the age of consent is not a crime.
    • Education for teens to teach them about the age of consent and what is legal behavior for their ages. This should be part of the mandatory Health education curriculum. It should include discussion as well as lectures.
    • Education for teens about the ease by which information flows in the digital age, and how easily information they thought private can become public.
    • Cell phone packaging should explain that everything sent through a cell phone remains in the cell phone provider’s records. Packaging should give links to websites with information about laws covering cellphone use.
    • Sensible guidelines and reasonable responses to teens who sext when one or both are not at the age of consent in their jurisdiction. This should include counseling for age appropriate behavior. It should include discussions of emotional maturity and age gaps. Counseling should not be optional, and should not depend on the ability of the family to afford it. Family court judges should have discretion for consequences when one teen is 18 and the other younger.
    • Rational consequences for teens who share private information. This should include counseling for the teen and community service, not jail time. Family court judges should have discretion for consequences for repeat offenders.

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    What's Your Opinion?

    What do you think is the best way to reform the current situation? Leave a comment for ongoing discussion.

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    My experience parenting teens with cellphones